Verdict on State Judges and Politics

REYNOLDS HOLDING

Published 4:00 am, Sunday, September 10, 2000

THE ARROGANCE of our esteemed governor toward state judges is surpassed only by that of our self-absorbed electorate.

Both seem to think the judiciary serves at their pleasure. Gray Davis said as much back in March, when he told reporters that judges sit on the bench "to reflect the sentiments that I expressed during the campaign." And voters from Marin to Santa Clara to Los Angeles grumble constantly about recall elections for judges who won't cater to their views on who should get custody of various lovable imps.

Even judges sound confused about which masters they ultimately serve. The National Center for State Courts, the California Judges Association and other weighty organizations have scheduled major meetings for later this year on how and by whom the judiciary should be selected.

Ultimately, it should make little difference. Judges are supposed to follow the law and their Socratically-trained minds, unswayed by voters or donors or meddlesome politicians. Unfortunately, it doesn't always work that way. Human nature and the absence of life tenure creates at least some temptation for state judges to serve "the sentiments," as our governor put it, of whoever put them on the bench.

The trick, then, is to pick judges in a way that minimizes that tempta tion. Trouble is, lots of people disagree over which way is best: Appointment, election or, as in California, a combination of the two. Worse, they can all claim to be right because there's no real evidence to prove any of them wrong.

Until now, that is.

In the latest issue of Regulation magazine, two economists, Alexander Tabarrok and Eric Helland, make a compelling case against letting the voters choose judges in partisan elections.

Tabarrok, of Oakland's Independent Institute, and Helland, of Clarement-McKenna College, started with the notion -- supported by plenty of research -- that state governments discriminate against out- of-state residents. Tourist states, for example, tend to rely heavily on hotel and food taxes for revenue.

The reason, of course, is that elected officials stand a better chance of getting reelected if they can give state voters goodies paid for with out-of-state dollars.

Tabarrok and Helland decided to test this principle on elected judges. If the judges were truly free of political influence, they would treat out- of-state and in-state litigants equally. But any difference in treatment might show that elected judges were no more independent than ordinary politicians.

The authors looked at more than 7,000 personal-injury lawsuits filed in state courts around the country. They focused on judgments against corporations in two categories: out- of-state and in-state. The authors then compared the judgments of appointed judges with those of elected judges.

The results showed few differences between appointed judges and judges elected in nonpartisan contests, meaning elections in which judges aren't affiliated with a political party. But judges elected in partisan contests revealed a dramatically different story.

On average, they awarded more than twice as much money against out-of-state companies as in-state companies. The average in-state judgment was $276,320. The average-out-of-state judgment was $652,720.

To check the results, the authors did another test. They compared the judgments of federal judges -- who are appointed for life -- against in- state companies with the judgments against out of-state defendants and found virtually no differences.

Clearly, the authors concluded, at least some judges sweeten their prospects for reelection by catering to their constituencies: The voters who file lawsuits and the lawyers who kick in most of the campaign cash.

Tabarrok and Helland prudently warned that the results don't necessarily mean we should junk judicial elections. Elected judges can be an effective check against the power of the government, particularly in criminal cases.

But some defendants in at least a few state courts aren't getting a fair shake, and that's a serious problem. It may not mean a lot in California, where judges are appointed and then subject to reelection in nonpartisan contests. But even here, doubts abound over a judicial election system that involves increasing amounts of cash, sometimes-misleading campaign fliers and an electorate rarely familiar with the records and qualifications of candidates for judge.

So if we were to assume that our system is flawless, that our state judges are untouched by political influence, our esteemed governor's arrogance would be nothing compared with ours.